{ "id": 2217690, "name": "TOWN OF CLINTON, and HENRY VANN, Mayor, and J. A. POWELL, F. L. TURLINGTON, D. L. BONEY, and F. B. JOHNSON, Commissioners of Said Town of Clinton, v. STANDARD OIL COMPANY", "name_abbreviation": "Town of Clinton v. Standard Oil Co.", "decision_date": "1927-03-23", "docket_number": "", "first_page": "432", "last_page": "436", "citations": [ { "type": "official", "cite": "193 N.C. 432" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "58 Wash., 501", "category": "reporters:state", "reporter": "Wash.,", "case_ids": [ 526225 ], "opinion_index": 0, "case_paths": [ "/wash/58/0501-01" ] }, { "cite": "124 Cal., 344", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2046731 ], "opinion_index": 0, "case_paths": [ "/cal/124/0344-01" ] }, { "cite": "156 Mich., 376", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1589556 ], "opinion_index": 0, "case_paths": [ "/mich/156/0376-01" ] }, { "cite": "63 La. Ann., 526", "category": "reporters:state", "reporter": "La. Ann.", "opinion_index": 0 }, { "cite": "27 Pac. Rep., 1010", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "7 Colo. App., 157", "category": "reporters:state", "reporter": "Colo. App.", "opinion_index": 0 }, { "cite": "176 N. C., 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655975 ], "opinion_index": 0, "case_paths": [ "/nc/176/0351-01" ] } ], "analysis": { "cardinality": 598, "char_count": 9484, "ocr_confidence": 0.46, "pagerank": { "raw": 3.752314539347263e-07, "percentile": 0.8952861730548769 }, "sha256": "10b9ae9273ba884060ec6f04578c2cea46ab9eefb357bd7276a0bd3aa77e733f", "simhash": "1:af7bdf795ca4e5f7", "word_count": 1599 }, "last_updated": "2023-07-14T17:08:43.639996+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TOWN OF CLINTON, and HENRY VANN, Mayor, and J. A. POWELL, F. L. TURLINGTON, D. L. BONEY, and F. B. JOHNSON, Commissioners of Said Town of Clinton, v. STANDARD OIL COMPANY." ], "opinions": [ { "text": "Clarkson, J.\nThis is an action brought by plaintiffs against defendant, seeking injunctive relief and praying that a permanent restraining order be granted enjoining the defendant from erecting and operating a filling station for storing and retailing kerosene oil, gasoline and oils, within the fire district or fire limits of the town of Clinton, contrary to an ordinance of the town of Clinton.\nThe sole question involved is the validity of an ordinance of the town of Clinton, N. C., adopted 1 August, 1925, as follows:\n\u201cResolved, that no more filling stations for storing and retailing kerosene oil, gasoline and oil be permitted to be erected and maintained within the fire disimct of the town of Clinton heretofore established and described.\u201d\nA violation of the ordinance is made punishable by fine, not exceeding $50, or imprisonment according to law (which could not exceed 30 days), in the discretion of the mayor.\nIt appears from the findings of fact by the court below that there are now six places inside the fire district or fire limits where gasoline is sold.\n\u201cThis Court has held that the business of dealing in gasoline and oil is legitimate business in municipalities, and not a nuisance per se, so all persons have the right to engage in this business upon equal terms and conditions.\u201d Bizzell v. Goldsboro, 192 N. C., p. 355. Hanes v. Carolina Cadillac Co., 176 N. C., 351; Sherman v. Levingston, 128 N. Y. Sup., 581; Weaver v. Palmer Bros. Co., 46 Sup. Court. Rep., p. 320, decided 8 March, 1926.\nBlashfield Cyc. Automobile Law (1927), vol. 3, p. 2675, citing the Hanes case, supra, says: \u201cThe business of conducting an automobile garage, or a supply station for automobiles, is not generally regarded by the courts as a nuisance per se, but, on the contrary, is considered a legitimate and necessary industry. One Court has said that public garages are absolutely necessary to the progress of the community, and that each member must suffer the incidental damage and liability to danger which arises from their nonnegligent use.\u201d\nPlaintiffs argue that the fire district ordinances prescribe the limits of the district and prohibit further erection or repair of any building within these limits unless of brick, etc., without a word as to use and operation of wood or frame buildings already within said district. Is the fire district ordinance for this reason void? If not, is the ordinance in question void? Surely, it is the policy under such fire district ordinances, that as wood and frame buildings are destroyed or removed, tbey must be replaced by fireproof buildings, and as filling and storage stations already in tbe district pass out, they cannot' return. Is not tbe principle tbe same in both cases? It is a bad rule that will not work both ways. Tbe vice of plaintiffs\u2019 contention is patent. Tbe fire district ordinances 'regulate. All wbo build or repair must do so usually out of certain fireproof material, and all come under tbe regulations. No discrimination or favoritism. These regulations will apply to defendant if it builds in tbe limits. Tbe fire limit regulations are sane and sensible fire preventions, and within tbe police power, and a great protection to tbe public.. C. S., Municipal Corporations, Art. 11, mentions them: \u201cRegulation of Buildings.\u201d Tbe present ordinance does not regulate, but keeps alive tbe six gasoline places inside tbe fire limits where gasoline is sold, and prohibits defendant from carrying on a like legitimate business in tbe same limits. It discriminates against defendant and gives a monopoly to those now carrying on tbe business in tbe district. It is no regulation; it is a prohibition.\n\u201cA frequent recurrence to fundamental principles is absolutely necessary to preserve tbe blessing of liberty.\u201d Const. N. C. (1868), Art. I, sec. 29. Const. 1776, Decl. Rights, sec. 21. \u201cPerpetuities and monopolies are contrary to tbe genius of a free state, and ought not to be allowed.\u201d Const. N. O., 1868, Art. I, sec. 31; Const. 1776, Decl. Rights, sec. 23.\nIn Tugman v. City of Chicago, 78 Ill. Reports, p. 409, tbe Court, speaking to tbe subject, says: \u201cIf one of tbe citizens of Chicago is permitted to engage in tbe business of slaughtering animals in a certain locality, an ordinance which would prevent, under a penalty, another from engaging in tbe same business, would not only be unreasonable, and, for that reason, void, but its direct tendency would be to create a monopoly, which tbe law will not tolerate. Tbe fact that certain persons were engaged in tbe business within tbe district designated in tbe ordinance at tbe time of its adoption gave them no right to monopolize tbe business, nor would such fact authorize tbe board of health to provide that such persons might continue tbe avocation, while others should be deprived of a like privilege wbo should engage in tbe business at a later period. ... A regulation of this character, to be binding upon tbe citizen, must not only be general, but it should be uniform in its operation.\u201d City of Lake View v. Tate, 130 Ill., p. 247; People v. Village of Oak Park, 266 Ill., p. 365; Billings v. Cook, 35 Mont., p. 95; May v. People, 7 Colo. App., 157, 27 Pac. Rep., 1010.\nIn Crowley v. West, 47 Law Rep. (63 La. Ann., 526), at p. 655, tbe Court, speaking to tbe question, said: \u201cWe have, then, a case in which it appears that a person engaged in a business which is conceded to be lawful, in which four other persons or firms are engaged, in the same town, and which, so far as the record discloses, is conducted properly and inoffensively, is nevertheless, by the operation of a municipal ordinance, arrested and fined because he has failed to establish his said business in part of the town remote from the business center, rather than at the place which he considers most advantageous; and it further appears that the other four persons or firms engaged in the same business are not to be affected by the ordinance, but are to be permitted to conduct their business where they please, and that it naturally pleases them to remain in the central part of the town, from which the defend\" ant is to be permanently excluded. The proposition that the defendant can be thus discriminated against, and that his four competitors in business can be thus secured the monopoly in perpetuity of the livery-stable business in Crowley, cannot be seriously entertained,\u201d citing numerous authorities.\nThe principle is well settled that ordinances must be uniform, fair, and impartial in their operation. They must be reasonable and not arbitrary. There can be no discrimination against those of the same class. The regulation must apply to all of a class. An ordinance that grants rights \u2014 the enjoyment must be to all, upon the same terms and conditions. An ordinance cannot penalize one and for the same act, done under similar circumstances, impose no penalty. No ordinance is enforceable in matters of this kind, a lawful business, that does not make a general or uniform rule of equal rights to all and applicable to all alike \u2014 then there can be no special privilege or favoritism. The right of individuals to engage in a lawful calling and use their property for lawful purposes is guaranteed to them. Barger v. Smith, 156 N. C., p. 323; Bizzell v. Goldsboro, supra; S. v. Fowler, ante, 290; McQuillin Municipal Ordinances, sec. 193; Dillon on Municipal Corporations, 5 ed., vol. 2, sec. 593; Weadock v. Judge, 156 Mich., 376; Los Angeles County v. Hollywood Cemetery Assn., 124 Cal., 344; City of Seattle v. Dencker, 58 Wash., 501.\nOne of the able and distinguished attorneys for the defendant, Standard Oil Company, who argued the case in this Court, with persuasive logic, contended that monopoly came from two Greek words meaning \u201csole-seller\u201d; that the six present sellers would be the sole sellers for all time in perpetuity, excluding the Standard Oil Company, and this was a monopoly \u2014 a wrong done to a legitimate business, so declared by this Court. To all of which we agree. It may be said, in reference to defendant, by way of pleasantry:\n\"The Devil was sick \u2014 the Devil a monk would be;\nThe Devil was well \u2014 the Devil a monk was he.\u201d\nWe will not discuss the anomoly of plaintiff\u2019s bringing an action to enforce its own ordinance, praying injunctive relief; but decide the case on its merits, as the point is not raised by the parties.\nFor the. reasons given, the ordinance is void. The judgment of the court below is\nAffirmed.", "type": "majority", "author": "Clarkson, J." } ], "attorneys": [ "Haircloth, & Fisher and Butler & Herring for plaintiffs.", "Graham & Grad/y and Pou <& Pou for defendant." ], "corrections": "", "head_matter": "TOWN OF CLINTON, and HENRY VANN, Mayor, and J. A. POWELL, F. L. TURLINGTON, D. L. BONEY, and F. B. JOHNSON, Commissioners of Said Town of Clinton, v. STANDARD OIL COMPANY.\n(Filed 23 March, 1927.)\nMunicipal Corporations \u2014 Cities and Towns \u2014 Fire Districts \u2014 Ordinances \u2014Discrimination\u2014Constitutional Law \u2014 Monopolies.\nOrdinances for the erection and maintenance of filling stations within a prescribed fire limit of a town must be of uniform application and in-discriminatory, and where there are several such stations conducting business within such fire limits, an ordinance prohibiting the erecting of another filling station of the same kind as existing therein is void, as tending to create a monopoly forbidden by our State Constitution, Art I, sec. 31; Const. 1776, Declaration of Rightsj sec. 23.\nAppeal by plaintiffs from Grad/y, J., at chambers in Clinton, 20 November, 1926. Prom Sampson.\nAffirmed.'\nHaircloth, & Fisher and Butler & Herring for plaintiffs.\nGraham & Grad/y and Pou <& Pou for defendant." }, "file_name": "0432-01", "first_page_order": 510, "last_page_order": 514 }